Under scrutiny, JCOPE speaks

In unusual move, panel confirms probe amid questions over Lopez

Updated 9:52 am, Tuesday, September 11, 2012

jcope091012
/ Times Union

Ellen Biben, left, executive director of the New York State Joint Commission on Public Ethics and Janet DiFiore, chair of the commission, listen as a fellow member of the commission talks during the open meeting portion of the New York State Joint Commission on Public Ethics meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

Ellen Biben, left, executive director of the New York State Joint...

Journalists crowd around the table to hear as members of the New York State Joint Commission on Public Ethics hold a meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

Journalists crowd around the table to hear as members of the New...

Journalists crowd around the table to hear as commission member Marvin Jacob, background center, addresses his fellow commission members during the open meeting portion of the New York State Joint Commission on Public Ethics meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

Journalists crowd around the table to hear as commission member...

Journalists crowd around the table to hear as members of the New York State Joint Commission on Public Ethics hold a meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

Journalists crowd around the table to hear as members of the New...

Journalists crowd around the table to hear as
Ellen Biben, background left, executive director
of the New York State Joint Commission on Public Ethics and Janet DiFiore, chair of the commission, take part in a commission meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

Journalists crowd around the table to hear as
Ellen Biben,...

Journalists crowd around the table to hear as members of the New York State Joint Commission on Public Ethics hold a meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

Journalists crowd around the table to hear as members of the New...

Members of the New York State Joint Commission on Public Ethics hold a meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

Members of the New York State Joint Commission on Public Ethics...

Journalists crowd around the table to hear as members of the New York State Joint Commission on Public Ethics hold a meeting on Monday, Sept. 10, 2012 in Albany, NY. (Paul Buckowski / Times Union)

ALBANY — Under pressure from the media and many of the elected officials who appointed them, the members of the Joint Commission on Public Ethics on Monday took the unprecedented move of acknowledging that an investigation was moving forward.

But beyond saying that JCOPE members had unanimously voted to start a probe, Chairwoman Janet DiFiore offered no details about the target or scope of the investigation — although it's widely understood to be an examination of the sexual harassment charges against Assemblyman Vito Lopez and the circumstances surrounding the Assembly's decision to sign off on a $135,000 settlement with two of his alleged victims.

JCOPE's very acknowledgment of an investigation, however, runs counter to past practice at the 9-month-old watchdog entity and its predecessor, the Commission on Public Integrity, in which members steadfastly maintained they were prohibited from even saying they were conducting an investigation.

Monday's vote comes days after news reports suggested JCOPE was investigating the allegations against Lopez, the embattled Brooklyn Democratic boss, but not the involvement of Assembly Democratic Majority Speaker Sheldon Silver and others in the taxpayer-funded settlement. On Friday, Gov. Andrew Cuomo threatened to call a special investigative panel if, as suggested in those accounts, JCOPE declined to pursue a broader probe.

Those news reports were inaccurate, said JCOPE Commissioner Marvin Jacob during the long open portion of Monday's meeting. He argued that in light of leaks surrounding the affair, the panel should open up their deliberations, which had previously been conducted in closed executive session.

"Let the public see how we operate," said Jacob, a Silver appointee, as a cluster of reporters stood alongside the commissioners' table.

Another commissioner, Cuomo appointee Daniel Horwitz, argued that such a move could hurt their investigations.

"There is a real-world, practical aspect to opening up an investigation," he said, suggesting it would set a troublesome precedent.

JCOPE members rejected Jacob's motion, but voted to simply announce whether they were authorizing an investigation or not.

While offering no more detail, parties said to be involved in the Lopez matter have said they received "document preservation" letters from JCOPE ordering them to hold on to paperwork that might be used in an investigation.

And Gloria Allred, the Los Angeles-based lawyer who represented the two women in the June settlement, said she has already been subpoenaed by JCOPE staffers.

Silver spokesman Michael Whyland said the leader welcomes an investigation.

"The speaker has made it very clear that he wants to get all the facts out regarding this matter, and we are ready to cooperate with any investigation JCOPE undertakes," Whyland said.

While there have been occasional leaks from ethics commissions in recent years, the context of this case hit a raw nerve due to the rules under which JCOPE operates. For instance, in order to launch an investigation of any Democratic Assembly member, at least one of Silver's three appointees to the panel would have to vote yes.

If an investigation didn't go ahead, it could mean that none of the speaker's appointees voted to investigate. Thus the implication that so angered Jacob: that an investigation limited to Lopez implied that the speaker's appointees were protecting him.

"None of us comes here with a proxy to vote on anything," Jacob said.

He and other commissioners were critical of the Friday statement from Cuomo spokesman Josh Vlasto, who said the governor would appoint a special Moreland Act commission to investigate the Lopez affair if he thought JCOPE wasn't conducting a thorough investigation.

Also Monday, former JCOPE Commissioner Ravi Batra — the sole JCOPE member appointed by Senate Democratic Leader John Sampson — charged that the watchdog's staff, many of whom have previously worked for Cuomo, are providing more information to some commissioners than to others.

In a characteristically long and often eccentric letter to Cuomo, Batra said JCOPE was operating under an informal class system of "super commissioners" who get the information first, and "inferior commissioners" who are left in the dark.

There were some discrepancies during Monday's debate over opening up the meeting. While Horwitz said that prior discussions — ostensibly about the scope of the Lopez investigation, though it was never named — involved "esoteric" or "legalistic" matters, DiFiore emerged from a 90-minute executive session to tell reporters those earlier talks centered on a "generic process issue."

And while Silver appointees Jacob and Ellen Yaroshefsky pushed for opening up discussions, the Cuomo appointees voted against that shift in procedure.

JCOPE isn't the only entity investigating the affair. At the request of the Brooklyn district attorney, Staten Island District Attorney Dan Donovan, a Republican, has begun his own probe of potential criminality in the affair. (JCOPE looks largely at the public officers law where violations are limited largely to misdemeanors.)

Last week, a New York City judge said Donovan had the authority to investigate both Lopez's actions and Silver's handling of the matter.

Lopez has denied all allegations made against him and intends to run again for his Assembly seat despite being stripped of his seniority by the chamber's own ethics committee.